In a column over the past weekend, Ruth Marcus of the Washington Post focused on threats to the “legitimacy” of the Supreme Court, which she said was reflected in various efforts by current justices to argue, as Justice Amy Coney Barrett put it, that justices are not “a bunch of partisan hacks.”
I don’t think they are partisan hacks, but many of them might as well be.
Many of the justices are smart and well-intentioned and decide cases according to their judicial philosophies. But they vote a party line on the big cases, so they almost might as well be party hacks taking a call from a party boss telling them how to vote.
In the case of Coney Barrett and those of the other recent appointees, it is universally understood that they were put on the court by partisan presidents and confirmed by partisan senators using blatantly and highly partisan tricks in some cases. I’m looking at you Mitch McConnell, most especially in using partisan power to deny for a precedent-shattering TEN months a hearing to highly qualified nominee Merrick Garland in 2016, the most blatant example of court-stacking in modern history. So yes, Justice Coney Barrett, even if you rule according to your own sincere beliefs, it leads to partisan jurisprudence.
I would add that those rulings, and the lineup of how the various justices voted on the cases in question, were the same as they would be if the justices were partisan hacks voting the party line of the party that put them on the bench.
In the long history of Supreme Court appointments, there are many famous cases of justices who voted and ruled in ways that surprised and perhaps annoyed the president who appointed them. But I’ll also assert that those days are mostly over. And, to the degree they are over, Justice ACB, you might as well be a “partisan hack,” however sad or angry that makes you.
Here’s one more link to the Marcus column that set this off.
I would only add to Eric’s rhetorical headline the fact that, in recent years when a Republican is in the Oval Office, at least, potential SCOTUS appointees must apparently pass muster with the Federalist Society, which purports to be “nonpartisan.” Based on the evidence, that claim is simultaneously technically true, because they’re not officially registered as a Republican lobbying group, and laughably irrelevant in the current political environment. I’m not aware of any right-wing or libertarian Democrats with national standing.
IMHO, Pope Francis himself would be a much better SC justice than the roster drafted from the Federalist Society team.
Why? Because he clearly loves people and wants to improve their lot in life.
And that certainly is the role of the church. It’s not the role of the federal government, however.
Other than that “promote the general Welfare” thing in the declaration of independence:
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
Something about “promoting the general welfare”….
The Constitution of the United States
PREAMBLE
We, the people of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
It says “promoting” not “providing.”
How would you see SS and Medicare in the promoting/providing divide?
Fall within promote? Or cross the divide into provide and should eliminated as an overreach?
Inquiring minds want to know.
And then there is a list of rules of what the constitution allows.
Funny, you seem to forgot that part.
“it is universally understood that they were put on the court by partisan presidents and confirmed by partisan senators using blatantly and highly partisan tricks in some cases.” If our justices as they say are non partisan than perhaps they should have had the integrity to refuse their nominations when they were given them under such partisan circumstances. Hard to argue you are non-partisan when rooting for and sitting in the dug out of the home team!
Or at least not show up to political events, even if it is to claim (in front of an entirely partisan crowd invited by an entirely partisan Senator) that they’re not partisan hacks. If it walks like a hack, and quacks like a hack, it seems pretty likely it’s a hack.
The recent Alito meltdown at the press, expressing outrage than anyone dare infer these 9 constitutional scholars were in any way political will have an interesting effect: They better not act like political hacks as they encounter hot political issue after hot political issue in their next term.
Conservatives will again be bitterly disappointed by the judges they so diligently bought and paid for when they fail to deliver the goods…
I tried looking it up but I couldn’t find an example when the three liberal potted plants voted with the conservative members of the court, so yeah, they vote their party all right. Plenty of examples when the allegedly conservative justices like John Roberts voting with the liberals, including his role in rescuing Obamacare and Amy Coney-Barrett’s ruling on upholding Indiana University’s mandated Covid shots.
There are no such examples from the liberals.
Most Supreme Court decisions – 67% in the most recent term – are unanimous. Most of those opinions were not momentous constitutional rulings, but it does show that you weren’t looking hard enough for your examples.
Only seven cases were decided by a 6-3 vote, and only four by a 5-4 vote.
You didnt actually look it up because there are literally hundreds of examples. Generally about half of supreme court decisions are unanimous.
You need to look a little harder:
“An ABC News analysis found 67% of the court’s opinions in cases argued during the term that ends this month have been unanimous or near-unanimous with just one justice dissenting.”
https://abcnews.go.com/Politics/supreme-court-defies-critics-wave-unanimous-decisions/story?id=78463255
You clearly didn’t look very hard.
https://www.scotusblog.com/statistics/
This has all the stats you want.
The joke I found insightful was the one about Amy C-B placing her hand on the Constitution and swearing to uphold the New American Bible.
No Muslims? No atheists? No Shinto or Taoists?
Maybe the Federalists need some new blood if they are to stand in judgment on religious v. Constitutional matters?
“I tried looking it up but I couldn’t find an example when the three liberal potted plants voted with the conservative members of the court …”
You must have been looking in the wrong places. 9-0 decisions are the most common. They don’t attract the attention of 5-4 or 6-3 decisions or other splits. PolitiFact notes 9-0 votes have been the plurality of all decisions since “at least” 2008 (the lowest 36%).
“Are Supreme Court Justices just partisan hacks?” Merriam-Webster’s online dictionary defines a hack as “a person who works solely for mercenary reasons. A hireling.” By that definition, I think four of the Supreme Court Justices, Alito, Gorsuch, Kavanaugh and Barrett are deservedly called “hacks”. They are either clueless or disingenuous hacks based on their apparent failure or refusal to acknowledge that they know they were appointed to fulfill a right-wing agenda and they are carrying out this agenda even if means throwing over all of the jurisprudence and experience of the last 125 years. If they were not complete hacks, they would not have denied this charge. Acknowledging it only reinforced their well-founded fear that much of the public are on to them and their agenda and that this has been the main driver of the decline in the legitimacy and respect of the Supreme Court. Anyone who was not a hack would have never accepted any nomination under the circumstances they were offered or, having accepted the nomination, would be routinely recusing themselves from deciding many of the cases which are being accepted.
Roberts is a partial hack. He is redeemed from total hack only by his willingness to not stoop to joining the other four total hacks in every case decided. I don’t know about Thomas being a hack. He is simply closed minded and detached from reality, living in a dream world who thinks he would have been appointed a Justice of the Supreme Court during the McKinley era following Plessy v. Ferguson.
Why is a conservative on the supreme court a hack and a liberal not?
Why are Justices like John Paul Stevens, Harry Blackmun or for that matter Stephen Breyer “liberal” ? hey all were and are quite relatively conservative men and Justices. The answer is that while people like Stevens and Blackmun were nominated by quite conservative Presidents in their time, they did not at least march in lock step with some preconceived “conservative agenda.” One does not have any sense that their opinions or dissents were predictable like the decisions by the current six (with four bona fide hacks) are. The fact that most of the decisions by the present Supreme Court are unanimous obscures the fact that the six have large control over which of the 7,000 to 8,000 petitions for certiorari are selected for review. Is it a mere coincidence that a handful of right-wing “public interest law firms” can boast of 10 or 11 “victories” in the US Supreme Court since 2000 when only 0.1% of the petitions are accepted every year?
These “victories” represent the success of an agenda framed by the network of Federalist Society lawyers, “public interest law firms”,right wing law schools like the George Mason Law School, and other so-called “think tanks” and “charitable foundations” to undo the jurisprudence established by the Supreme Court going back to Charles Evans Hughes and before. Alito, Kennedy and Scalia were actually active in creating this network and the agenda before they were nominated and became Supreme Court Justices. Gorsuch, Kavanaugh and Barrett are junior members who jumped opportunistically on the bandwagon of this “conservative law movement.”
There is indeed a “conservative law movement.” Those who are part of this movement are united in a common agenda, partly based on “law and economics” aimed at reinstating “economic liberty” as a privileged “liberty” to be protected by the First Amendment, not just as it is by the Fifth and Fourteenth Amendments. The evidence of this agenda is revealed by decisions in the Citizen United case, the Harris v. Quinn and Janus cases, and other decisions from the past 30 years. These decisions reveal a trend toward striking down legislation these (now six) believe is unwise by the simple expedient of reclassifying economic interests as “First Amendment rights”. This trick requires the government to prove legislation or regulation is justified and justified by some “compelling state interest.” Whether a governmental interest is sufficiently “compelling” is up to their individual caprice. They have made clear by their decisions so far that they do not feel protection of democracy, elections, rights of labor to organize, and probably reproductive rights and minority rights are sufficiently “compelling” to warrant upholding federal or state regulations designed to protect them.
That’s a short explanation of why they are hacks and those Justices who oppose them by dissent are not.
Well , from this perspective, the whole conservative right wing idea of textuality is BS! If you follow the text, 100%, and only assume you know today what they knew then, you are left with a 1 shot musket a 1 shot pistol and a Bowie knife! Seen the SCOTUS rule that way lately? Need I go further?
Because conservatism as an ideology lends itself to a lack of ability?
Simply put I would agree that all the Justices are partisans, the illusion of impartiality is just that, for all areas of life. The hacks are those that refuse to deviate from their partisanship, even in the face of compelling evidence to the contrary. I’ll leave it to the readers to decide who that describes.
What infuriates me during nomination hearings, is when the prospective justices refuse to disclose their views on controversial issues because that would suggest pre judging. It’s not disclosing views that suggest pre judging, it’s having those views. And all intelligent people have views.
It opens THEM up to pre-judging by those who want such views publicized BEFORE they hear even hear the new arguments.
When it comes to corporate power versus consumers or workers, Roberts is a door with hinges so rusted it couldn’t possibly be moved with a battering ram. He knows The Koto-pus and the Business Roundtable don’t give a rip about gay marriage or other social issues, so he can easily move to the center in those cases.
Make no mistake, when it comes to power and money, Roberts is 100% on the side of the wealthiest Americans, and they feel no threat from him.
Three recent Trump appointees to the Supreme Court–Gorsuch, Kavanaugh, and Barrett–were appointed to be hacks: they are supposed to get rid of Roe on abortion rights, voting with solid conservatives Alito and Thomas, and maybe with Roberts added in.
They made a Freudian-slip kind of mistake, though, with their quick, no-arguments-heard, secretive, dead-of-night docket item on the new, ludicrous Texas anti-abortion law. Oops! The procedure is usually reserved for routine stuff that does, however, require a fast decision but no arguments. You don’t take on a major right, with fifty years of precedent, in secret, in the middle of the night, not hearing any formal arguments. You get faced with a weird new law that is meant to avoid judicial review? You put it in injunction, and go through the legal process of hearing it.
The Conservatives’ mistake, a kind of unforced error: thinking that America is ready for a secretive decision on women’s right to choose, or indeed, any decision that would take that right away.
America took notice, and the talk began in serious tones, about expanding the court or limiting justices’ terms. The Court feels threatened, and it should. The majority have revealed accidentally that they ARE political hacks, with orders and expectations to do certain conservative things.
[The pubic has noticed, too: There’s no reason to hear the Mississippi abortion limits case this year, unless the Court intends to weaken or eliminate the Roe decision. They decided an identical case two years ago, against restrictions on abortion. But now the majority is definitely either 5-4 or 6-3 anti-sbortion, and Roe is doomed.]
I think of Supreme Court justices, at least the ones we have put on the court in recent decades, as partisan hacks. Not since Ruth Bade Ginsburg have we chosen a lawyer for the court who actually had a distinguished legal career. Since then, our choices have generally been judicial careerists, people who have spent their entire professional lives preparing for senate confirmation hearings. This is political hackery, legal version.
Self awareness in the era of Trump has definitely gone out of style but even I was amazed by the extraordinary lack of introspection shown by Justice Barrett speech at the McConnell Center, surely one of Kentucky’s greates shrines to political hackness. But what truly disturbed me was the distinction she attempted to make between judicial and political philosophy. In this land of Dred Scott, the Slaughterhouse Cases, and Plessy v. Ferguson, there has never been a difference too, and justices of the Supreme Court, no matter how brilliant they are, should never be allowed to pretend there is without dispute or correction.
WOW! Another “name-calling” outburst that technically is not a “name-calling” outburst, but “might as well be.”
All I can say about is subject is that if you’re surprised by this, you haven’t been paying attention for the last 4 decades. I’m sure it will surprise no one that I blame “moderate/centrism” for this slide into Hacksville.
The Republican design (literally referred to as “intellectual fraud” way back in the 80’s) has been clear since the Nixon Administration and creation of Conservative “think tanks” like the Heritage Foundation.
The entire program of “Originalism” has always been legally and intellectually fraudulent yet our current POTUS guided Scalia into the Supreme Court with all but what? One vote in the Senate? Scalia was always a hack, eloquent, but a hack none the less.
It took decades for Biden to admit that ideology and agenda need to be a concern when selecting judges… So if our judges are now “hacks” it because the bipartisan regime allowed it to happen assuming the Parties could just take turns appointing judges. Then the Republicans/Fascists stopped letting Democrats take their turn and here we are. Yet another notch on the list of bipartisan fails. Some of us saw this coming for decades.
What has changed over the years is everyone’s focus. In America of yesteryear, the focus was local and on neighborhoods. National news was something you read in the Mpls Tribune in the morning or the Mpls Star in the afternoon, or maybe heard on the radio / TV, for 5 minutes. With the internet, everyone was allowed to share their opinions. At first no one really had strong opinions, but the head butting has intensified to the point of uncivility. I think the nation was better off locally focused, instead of entangled in opinions and global events.
For most of the two hundred some years since the constitution’s enactment, scholars and lawyers have mostly resisted the superficial logic of originalism. To start with, no one who has even the slightest experience with how a legislative body operates thinks that such entities have anything that is even close to being called an intent, let alone original intent. The Minnesota legislature has 201 different members and we would be lucky if we had only 201 versions of what the intent of any given bill might be.
Yes Hiram. I don’t think there is or has ever been any intellectually or even legally honest defense of “originalism” or the rationale behind it. The fact that is was allowed to become a legitimate legal theory is one of the darkest stains on American jurisprudence in my opinion. In a legal system where legislators routinely sabotage laws they want to make difficult to enforce by making “intent” a essential feature… the idea that a judge can KNOW the COMBINED intent of a group of men long since dead and turned to dust is pure fantasy pretending to be analysis.
Not to mention the fact that even if you could determine this intent… there’s absolutely no basis in the US Constitution to assume that original intent could be infallible and beyond question. The very nature of liberal democracy is secular government, the deification of historical figures is an ironic antithesis of any secular constitution but there they are, pretending that WHATEVER a bunch of dead MIGHT think about stem cells or AR15’s would have to be infallible and superior to anything WE might think. Whatever.
Several ideas are being thrown around here. The degree to which a judge is a “partisan hack” depends mostly upon to what degree the judge issues “results-driven” decisions: a decision which was issued solely because that’s the result the judge personally desires, whatever the existing “law” might be. Thus, when a judge rejects arguments that are superior to counter-arguments based on logic, facts or precedent and instead bases and relies on weaker (or stupider, or lamer) arguments, or ones not supported by existing precedent, then the judge is a partisan hack. All judges currently falling into this category on today’s Supreme Court are “conservatives”.
The three Trump hacks have the added feature of being democratically-illegitimate hacks to boot. And Amy Barret is a special case unto herself, as only a Halcyon Hack would have agreed to be put on the Court in the manner she was, in clear and open violation of the (newly minted) “McConnell Rule” (apparently applicable only to Dem presidents, according to Barret and McConnell’s Minority….)
On a second point, the Great Chief Justice, John Marshall, dispensed with any idea of “originalism” in the landmark case of McCulloch v Maryland (1819). There, Maryland had assessed an oppressive tax against the newly created Bank of the US, arguing that Congress had no specified power to create such a national bank. In striking down the state tax and upholding the legislation creating the bank, Marshall wrote the famous phrase of constitutional interpretation: “We must always remember that it is a constitution we are expounding”. For most of our history, this concept guided our understanding of the federal government. It is only in the failed Conservative Era (1980-202?) that these long discredited doctrines have sprung back to prominence, and reactionary talk of judicial “originalism” has resurfaced from the depths of bad faith arguments.
The justices are partisan, but calling them hacks isn’t particularly useful or accurate. Nor is trying to distinguish between Democratic judges and Republican ones as far as hackery. Presidents appoint judges bases on their politics. And judges tend to rule – when there is room to do so – the way the president who appointed them would want.
I don’t think “originalism” is any sort of accepted legal theory, among academics or students of courts and judges. It was fabricated on the fly by justices who felt a need for some theoretical justification for the outcomes they wanted to reach. I think if it had any intellectual force at all the application of the right to bear arms under the second amendment would be limited to the possession of blunderbusses.
Agreed, but then you get Heller vs. DC and Originalism isn’t just fun and games anymore. Sure, Originalism is starting with conclusions and working backwards, it’s declaring one’s on infallibility under the guise of someone else’s authority, sure, it’s dishonest, duplicitous, and dictatorial… but you still have guy like Terry above saying itsallright… we get OUR turn eventually… apparently ignoring the current crises in the Courts. Originalism IS accepted theory among lawyers and judges and we’ve been getting rulings that reflect THAT theory for decades.
Kind of interesting Hiram… if and when we get POTUS who simply decides to ignore SCOTUS and/congress that’s essentially the end of our Constitution. It’s not a coincidence that our most vocal defenders of the Constitution (i.e. “originalists, constitutionalists, patriots, etc.) are the ones who end up pushing us to the breaking point and beyond… the ones who tear up our Constitution.
As I understand it, the main purpose of “originalism” was to develop a supposedly principled basis for invalidating progressive legislation, as well as ending the development of the sort of constitutional rulings that were being announced by the Warren Court (and Burger Court, for that matter, since Roe is a Burger Court decision.) The idea was that such rulings were invalid because the Framers could not have intended such interpretations in 1789 when they adopted the various words and text, or when the country adopted the post-Civil War Reconstruction amendments that severely limited the “sovereignty” of the states to oppress people. Obviously this approach would freeze the document in 18th Century amber and render it essentially useless as a framework for national government and legal rights in a modern nation. Hence Marshall’s admonition quoted above.
This “conservative” project is deeply dishonest, and is simply a fig leaf for rightwing judicial reaction and activism. Paul brings up Heller v DC (2005), which is a perfect example of the dishonesty. This case supposedly found a constitutional right to own firearms for “personal protection”. To do so it had to overrule (or ignore) all previous cases saying there was no such right under the 2nd Amendment, ignore the clear text of the amendment itself, which speaks of the very purpose for which the “right” supposedly exists (“a well regulated militia being necessary…”), and ignore the history that the Framers never spoke of a right of personal protection being any part of these 18th century militia provisions.
So every aspect of “originalism” was flouted, both text and history, (not to mention well established precedent) in order for the 5 “conservative” male justices to create the dangerous gun “rights” that the nation is now saddled with, and which the “conservative” super-majority on the Court now plans to greatly expand.
There is a long list of Supreme Court justices who have been appointed for partisan reasons, or because the President who appointed them anticipated having a loyal ally on the Court. Some of those justices were able to transcend their partisan identity, and make their rulings on clear principles, rather than party platforms. Those are the justices we regard as great.
And this seems like an apposite time to remember Mr. Dooley: “”No matther whether th’ constitution follows h’ flag or not, th’ Supreme Coort follows th’ election returns”
Asking polticians not to act politically is sort of like asking tigers
to eat wildebeasts while not wearing their stripes. Our republica is 230 years old or so, and it’s politics and the way we view it’s institutions have gone through many changes over that time. Our understanding of what the Supreme Court today is the result of one of it’s decisions, Marbury v. Madison than anything in the constitution aInnd that decision came down more than a decade after the drafting of the constitution. In Marbury, the Supreme Court declared a federal statute unconstiutional. They didn’t that again until the Dred Scott, one of the most important elements in the sequence of events that would soon lead to the Civil War, hardly the sort of thing that would give one confidence in the Supreme Court’s power of judicial review.
For much of our history, the Supreme Court has been pretty passive. This makes sense because through much of that same history, the federal government was pretty passive. What we understand now as a powerful national government was mostly a development of the 20th centurty, beginning perhaps with the national effort required for WW I, and and becoming more fully formed as the Hoover and Roosevelt administration began to address the nation economic crisis of the Great Depression. As the country changed politically and economically, so did the court leading to the judicial crisis early in Roosevelt’s second term. The court changed then, and those changes lasted for a long time.